September 12, 1990

FACTS:

Page 320

You are a professional engineer with state agency ABC (ABC).
You also hold a license to operate wastewater treatment plants and
you are seeking a part-time position as an operator of a municipal
wastewater treatment plant outside of the ABC service area. The
duties of a wastewater treatment plant operator include recording
plant operations data, maintaining plant logs, collecting samples,
performing basic lab analysis and operating and maintaining
equipment.

Some of the municipal wastewater plants are operated under
contracts with private companies, and some are run directly by the
municipality. You are unsure whether you will accept a position
directly with a municipality or with a private company. If you
accept a position with a private company, you will not be named in
the contract between the company and the municipality. Regardless
of which entity employs you, you only intend to work on a part-time
weekend basis outside of your regular ABC duties. You assume that
your duties on a weekend shift would be limited to operating
equipment, checking security, making minor equipment adjustments
and obtaining lab samples.


QUESTION:


1. Does G.L. c. 268A permit your proposed outside employment
with a private company that operates municipal wastewater treatment
plants?

2. Does G.L. c. 268A permit you to-accept direct outside
employment with a municipality at its wastewater treatment plant?


ANSWER:



1. Yes, as long as you comply with the conditions set forth
below.

2. Yes, as long as you do not act on any matter within the
purview of the ABC.


DISCUSSION:


As a full-time ABC employee, you are a state employee for
purposes of the conflict of interest law, G.L. c. 268A, s.1(q).
Accordingly, the provisions of G.L. c. 268A, s.4 apply to your
outside employment.

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1. Private Company Employment


Section 4(a) prohibits a state employee from receiving
compensation from anyone other than the commonwealth or a state
agency in relation to any particular matter[1] in which the
commonwealth or a state agency is a party or has a direct and
substantial interest. At issue is whether the Commonwealth has a
direct and substantial interest in matters pertaining to the
operation of municipal wastewater treatment plants. In past
precedent, the Commission has found that where an agency exercises
substantial regulatory authority and oversight of an activity, the
commonwealth will have a direct and substantial interest in the
activity. See EC-COI-83-130 (state has direct and substantial
interest in county corrections officer's activities due to
substantial regulatory authority of Department of Corrections);
83-104 (activities of assistant medical examiner of direct and
substantial interest); 82-68 (activities of local liquor licensing
authorities of direct and substantial interest to ABCC).

The Commission concludes that the Commonwealth has a direct
and substantial interest in many of the activities of treatment
plant operators. Although the treatment plant is owned by a
municipality, the operation and maintenance of all treatment plants
is regulated by the Department of Environmental Protection (DEP).
G.L. c. 21, s.34 ("division shall supervise the operation and
maintenance of treatment works within Commonwealth") DEP requires
a municipality to obtain a state permit for either surface water
or groundwater discharge. G.L. c. 21, s.43; 314 CMR 3.00 - 5.00.
The permit includes conditions for compliance with DEP and federal
standards, monitoring by DEP and conditions for operation. See,
e.g., 314 CMR 3.00 (9)(10)(11).
DEP also performs inspections of
treatment plants to monitor compliance and has regular monthly
reporting requirements. 314 CMR 12.07. For example, DEP requires
specific laboratory sampling and analysis for each facility. 314
CMR 12.06. Upon request, DEP may review septage discharge records,
operating records, certain equipment failure records and monitoring
instrumentation records. 314 CMR 12.07. Additionally, under G.L.
c. 21, s.s.34A and 34B all wastewater treatment operators are
required to obtain state certification "to insure the proper
management, operation and maintenance of wastewater treatment
facilities."

Because of this extensive regulation, the Commission concludes
that wastewater treatment operator activities required pursuant to
the DEP permit or necessary for DEP determination of plant
compliance with DEP standards will be "in relation to" a particular
matter in which the Commonwealth has a direct and substantial
interest. These activities may include, but are not limited to,
performing lab tests or analysis required by DEP, collecting data
or other information to be incorporated into reports submitted to
DEP, submitting reports directly to DEP, maintaining or adjusting
equipment to comply with DEP standards for the facility, or
recording plant operation data which may be reviewed by DEP.
Therefore, you may not receive compensation from a private company
if your responsibilities include matters to be reviewed or
monitored by DEP or required by DEP.

On the other hand, some positions within the municipal
wastewater treatment plant may not be "in relation to" the DEP
permit or any DEP determination regarding plant compliance and,
accordingly, would not violate s.4. In past precedent, the
Commission has recognized that certain facts may overcome a
presumption that all work done pursuant to a permit is in relation
to that permit. See, EC-COI-88-9; 87-31. In EC-COI-87-31, the
Commission concluded that a municipal official could not be paid
privately to install septic systems because the installation was
in relation to the septic permit and subsequent inspection. We held
that where the official operated his own septic business and was
the only installer on the job, there was a presumption that the
work he performed was in relation to the permit. In that opinion,
however, we recognized that certain facts may overcome the
presumption that all work done pursuant to a permit is in relation
to the permit.

For example, a municipal employee, who is one of many
privately paid employees or independent contractors on a major
construction project, and who has no responsibility for
dealing with the town on any matter, might not be considered
to be privately compensated "in relation to" the permit which
allows the construction. Furthermore, certain permits which
authorize a major construction project (e.g., a zoning
municipal reuse permit to convert a school building into
condominiums) will not necessarily render all work done on the
project, e.g., interior painting, 'in relation to' the permit.

Applying the principles to your circumstances we conclude that
if your duties with the private company were limited to such
matters as internal plant security, maintenance of the plant
grounds or mechanical equipment repairs, then you would not be
receiving

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compensation in connection with a particular matter in which the
Commonwealth has a direct and substantial interest because these
matters are incidental to the DEP permit, standards and
regulations.[2]


2. Direct Municipal Employment


You indicate that you are also considering direct employment
with a municipality that operates its own treatment plant without
outside contracts. As the Commission has concluded above, the
receipt of compensation as a wastewater treatment operator from
anyone other than the Commonwealth in relation to matters
pertaining to the DEP permit or DEP compliance will generally
violate s.4. However, when a state employee holds employment with
a municipality, not a private entity, the prohibition of s.4 is
less restrictive. See, EC-COI-90-8; 90-4. In a 1980 amendment to
s.4, the Legislature provided that:

This section shall not prohibit a state employee from
holding an elective or appointive office in a city, town or
district, nor in any way prohibit such an employee from
performing the duties or receiving compensation provided for
such office. No such elected or appointed official may vote
or act on any matter which is within the purview of the agency
by which he is employed or over which such employee has
official responsibility.

This exemption would permit you to accept direct employment
with a municipality as long as the municipality is not in the ABC
service area. If the municipality is within the ABC service area,
this exemption will significantly restrict your activities because
virtually every matter would fall within the purview of the agency
by which you are employed.

In conclusion, "s. 4, prohibiting assistance to outsiders, is
the essence of conflict of interest legislation. It says, in
effect, that the norm of government employment is that the regular
public employee should, in the usual case, be a public employee
first, last and only. For him to be also a private employee is a
contradiction in terms: it suggests that he is serving two
masters." Buss, The Massachusetts Conflict of Interest Statute: An
Analysis
, 45 B.U.L. Rev. 299, 322 (1965). If you received
compensation from a private entity in connection with a matter in
which the Commonwealth has a direct interest, your loyalties would
be impermissibly split between the Commonwealth and the private
company. Therefore, you may not receive private compensation in
connection with being a treatment plant operator if your
responsibilities include matters pertaining to the DEP permit or
compliance standards. You may work directly for a municipality
outside of the ABC service area because the Legislature recognized
that a state employee who also serves in a municipal capacity will
continue to serve the public interest.

---------------

[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[2] This opinion will require you to scrutinize the
responsibilities for each position to which you apply. This opinion
is based only on the facts that you have presented. If the facts
change, you should seek further guidance from the State Ethics
Commission.

End Of Decision